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In Case You Hadn’t Heard…Judge Posner Revisited (and Reversed)

by Keith Hock

In August 2012, I wrote my first blog post about Judge Richard Posner excluding both sides’ damage experts and dismissing the case in Apple, et al. v. Motorola, et al.  Last summer, I wrote another post about Judge Posner excluding damage experts in two more cases.  This spring, I wrote about the beginning of baseball season.  So how are patent damages and baseball connected (other than providing an excuse to link to another previous blog entry)?

Here’s how – effective this season baseball expanded the use of instant replay so that more “out” and “safe” calls can be made correctly.  Our legal system has long had its own form of instant (well, maybe not so instant) replay – the appeals courts.  The United States Court of Appeals for the Federal Circuit (the “Fed. Cir.”) recently issued its decision reviewing Judge Posner’s “call” that the experts were “out.”  After its review, the Fed. Cir. decided that the experts were actually “safe” and remanded the case for further proceedings.  Needless to say, it will be interesting to watch what happens when this case is back in Judge Posner’s “ballpark.”

The Fed. Cir. provided its rationale for its decision that Apple’s damage expert’s testimony was admissible:

  • With regard to damages for one of the patents-in-suit, the Fed. Cir. concluded, “[t]he district court also erred by…questioning the factual underpinnings and correctness of Napper’s testimony, rather than the reliability of his principles and method and the sufficiency of the data upon which he relied.”
  • Regarding damage testimony about another patent-in-suit, the Fed. Cir. concluded that, “The district court excluded Napper’s proposed testimony for the sole reason that Napper relied upon an expert hired by Apple.…A rule that would exclude Apple’s damages evidence simply because it relies upon information from an Apple technical expert is unreasonable and contrary to Rules 702 and 703 and controlling precedent.”

The Fed. Cir. also reversed most of Judge Posner’s exclusion of Motorola’s damage expert, upholding only the exclusion of a portion of her testimony that was based on testimony from a licensing expert that was “not tied to the facts of the case.

I would think that the damage experts in this case were relieved to learn that the Court’s “replay system” determined that they were “safe” rather than “out.”  On the other hand, they were probably less pleased that the review process took almost two years rather than the two minutes that most baseball reviews take (although neither system is perfect).

Do you agree with the Federal Circuit’s ruling that the experts were “safe”?  Or should Judge Posner’s original “out” call have been confirmed?  Share your thoughts in the comment box below.

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